Littlefield v. Newell

• Decision Date: 24 January 1893
• Parties: LITTLEFIELD, Attorney General, ex rel. CHANDLER v. NEWELL.
• Court: Maine Supreme Court

27 A. 156

85 Me. 273

LITTLEFIELD, Attorney General, ex rel. CHANDLER

v. NEWELL.

Supreme Judicial Court of Maine.

Jan. 24, 1893.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Action in quo warranto by Charles E. Littlefield, attorney general, at the relation of Seth Chandler, against William H. Newell, to try defendant's title to the office of mayor of the city of Lewiston. Defendant had judgment, and plaintiff brings exceptions. Exceptions sustained.

The attorney general, in his replication to the respondent's answer, alleges, among other things, the following facts: "That after the breaking of said ballot box, as aforesaid, during said election, a large number of illegal ballots were deposited therein, by the knowledge, consent, and fraudulent connivance of said ward officers. * * * That for a large portion of said day of election the check list of said ward five was out of the possession of said ward clerk, and was in the possession of one Provost, who was entirely without right or authority to have the same, and that while the same was so in his possession, and at other times during said day, a large number of persons voted, whose names were not checked by the ward clerk in the manner provided by law. * * * That while said ballots were being counted, the ward clerk unlawfully checked names upon the check list of said ward, of a large number of persons who had not voted therein, and thereafter, willfully, and with the intent to falsify said election, and for the benefit of said William H. Newell, and with the knowledge and connivance of the warden of said ward, made out and returned to the city clerk of said city a false and fraudulent certificate of the ballots legally received in said ward five at said election, and therein certified as voting in said ward, at said election, a great number of persons in excess of the number actually voting therein, to wit, more than a hundred votes."

Savage & Oakes and Swasey & Briggs, for plaintiff.

The petitioner had two courses open to meet the respondent's prima facie case:

First. To contradict the facts therein stated by showing the actual vote to be different from the canvassed return, and to differ sufficiently to change the result of the election, by direct proof of the number and kind of ballots thrown.

Second. To destroy the value of the respondent's evidence by showing that the document purporting to prove the case was untrue, valueless, and void.

Fraud of election officers, making the returns uncertain, invalidates the returns, and makes the certificate valueless as evidence. This does not conflict with the general rule stated in Prince v. Skillin, 71 Me. 361, that the mere fact that illegal votes were received will not affect the election, or render it void, unless the number is great enough to change the majority. Such fraud does not invalidate the legal votes cast, but, by destroying the presumption of correctness of certificate, makes it necessary that any person who claims any benefit from the votes shall prove them by other evidence; and where no proof is offered, and the frauds are of such a character that the correct vote cannot be determined, the return of the poll will be rejected. People v. Thacher, 55 N. Y. 525; Id., 7 Lans. 274; Russell v. State, 11 Kan. 308; Mann v. Cassidy, 1 Brewst. 11; Judkins v. Hill, 50 N. H. 140; Thompson v. Ewing, 1 Brewst. 67; Weaver v. Given, Id. 140; Littlefield v. Greea, Brightly, Elect. Cas. 493; Knox Co. v. Davis, 63 Ill. 405; Knowles v. Yates, 31 Cal. 82; Re Wheelock, 82 Pa. St. 297; State v. Avery, 14 Wis. 122; Patton v. Coates, 41 Ark. Ill; McKeever v. Whalen, N. Y. Cont. Elect. Cas. 430; McLeod v. Halplne, Id. 439; Knox v. Blair, 2 Cong. Elect. Cas. 526; Washburn v. Voorhees, 3 Cong. Elect. Cas. 54; Dodge v. Brooks, Id. 78; Covode v. Foster, Id. 603; Finley v. Wells,

4 Cong. Elect. Cas. 389; Finley v. Bisbee,

5 Cong. Elect Cas. 74; Lee v. Richardson,

6 Cong. Elect Cas. 520; Lowe v. Wheeler, Id. 83; Lynch v. Chalmers, Id. 358; Bisbee v. Finley, Id. 191; Smith v. Shelley, Id. 40; Mackey v. O'Connor, Id. 561.

George C. Wing, for respondent.

The rules of law applicable to the case are:

(1) The production of returns makes a prima facie case.

(2) The burden is upon the relator to show sufficient illegal votes to overcome the apparent majority.

(3) The fact that there are illegal votes, if they do not change the result, does not aid the relator.

(4) The court may go behind the returns, but it will not do so until fraud is shown by the relator, sufficient in amount to change the result.

(5) Before the defendant can be compelled to produce other evidence showing the number of votes received by him, the returns must be invalidated by the relator.

(6) The law does not presume that the illegal votes were thrown for the successful candidate, but this must be affirmatively proved.

There is nothing to indicate that the relator is in a position to successfully meet any of these propositions, and we therefore submit that the ruling of the presiding justice conforms to the law.

The production of certificates of the election officers is sufficient to make a prima facie case for the defendant, and the burden of proof to show fraud is upon the relator. In People v. Thacher, 55 N. Y. 525, the court said: "The return is the primary evidence of the result of an election, and I assent to the general principle stated by the court for the defendant, that the return is to stand unless impeached, and is to be set aside or corrected only so far as it is shown to be erroneous." See, also, People v. Perley, 80 N. Y. 624, to the same point.

"The presumption of law is that the election was honestly conducted, and the burden of proof to show it otherwise is on the petitioner." Judkins v. Hill, 50 N. H. 142.

It is no objection to an election that illegal votes were received, unless the illegal votes changed the majority. The mere fact of their existence never avoids an election. First Parish v. Steams, 21 Pick. 154; Prince v. Skillin, 71 Me. 361, 373; School Dist. v. Gibbs, 2 Cush. 39; Ex parte Murphy, 7 Cow. 153.

We do not controvert the proposition that under certain conditions the court has the undoubted right to go behind the returns, but it seems that the relator must first show illegal votes sufficient to reduce the apparent majority to a minority. People v. Perley, 80 N. Y. 624; People v. Cook, 8 N. Y. 67; People v. Thacher, supra; 1 Dill. Mun. Corp. § 199; People v....